State v. Martin

proceedings are only at the temporary stage and a final deter-
mination regarding custody has not yet been made. As such,
the order of the district court denying Lisa’s motion to dis-
miss on the ground of inconvenient forum under § 43-1244
does not affect a substantial right and is not a final, appeal-
able order.
A ppeAl dismissed.
stAte of NebrAskA, Appellee , v.
ANdrew J. mArtiN, AppellANt.
782 N.W.2d 37
Filed April 13, 2010. 	No. A-09-648.
1. Trial: Convictions. A conviction in a bench trial of a criminal case is sustained if
the properly admitted evidence, viewed and construed most favorably to the State,
is sufficient to support that conviction.
2. Evidence: Appeal and Error. In determining whether evidence is sufficient to
support a conviction, an appellate court does not resolve conflicts in evidence,
pass on credibility of witnesses, evaluate explanations, or reweigh evidence pre-
sented, which are within a fact finder’s province for disposition.
3. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for the appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
4. Double Jeopardy: Convictions: Evidence. Where there has been insufficient
evidence presented to convict a defendant in a first trial, the Double Jeopardy
Clause forbids a second trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in the first proceeding.
Appeal from the District Court for Lancaster County: Jeffre
C heuvroNt, Judge. Reversed and remanded with directions
to dismiss.
Mark E. Rappl for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
irwiN, CArlsoN, and moore, Judges.
338 	18 NEBRASkA AppELLAtE REpoRtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

CArlsoN, Judge.
INtRoDUCtIoN
Andrew J. Martin appeals his convictions in the district court
for Lancaster County of driving under the influence of alcohol
(DUI), third offense, and refusal to submit to a chemical test.
For the reasons set forth below, we reverse, and remand with
directions to dismiss the convictions.
BACkGRoUND
on August 31, 2008, at approximately 6:11 a.m., officer
Michael Schmidt of the Lincoln police Department was dis-
patched to the area of 46th and Cleveland Streets in Lincoln,
Nebraska, in reference to “suspicious parties.” on his arrival,
Schmidt observed three men standing near a vehicle parked
on the west side of 46th Street facing southbound. No one
was in the vehicle. Schmidt testified at trial that there was
nothing suspicious in the manner in which the vehicle was
parked. Schmidt observed damage to the front and passenger
side of the vehicle, including a blown tire and a missing side-
view mirror.
Schmidt asked the three males standing near the vehicle
which one of them was the operator of the vehicle. Martin
told Schmidt that the vehicle belonged to him and that he had
been driving the vehicle when he reached down to change the
music in his stereo. the vehicle hit the curb, causing the tire to
blow, and then struck several mailboxes. Martin indicated that
the accident happened at a different location from where the
vehicle was parked.
During Schmidt’s contact with Martin, he observed that
Martin had a strong odor of alcohol about his person, that his
eyes were bloodshot, that his speech was slurred, and that he
was swaying and staggering when he walked. Schmidt testified
that these observations of Martin indicated to him a presence
of alcohol in Martin’s system. Schmidt had Martin submit to a
standardized field sobriety test, and the results indicated that
Martin had been consuming alcohol. Martin refused to submit
to any other field sobriety tests, including a preliminary breath
test. At this juncture, Schmidt arrested Martin for DUI. Martin
was transported to a detoxification center for a chemical test,
StAtE v. MARtIN 	339
Cite as 18 Neb. App. 338

where he was read the postarrest chemical test advisement
form and refused to submit to a chemical test.
on December 5, 2008, an information was filed charging
Martin with DUI, third offense, and refusal to submit to a
chemical test. A bench trial was held on April 30, 2009. the
only witness at trial was Schmidt. At the close of the State’s
evidence, Martin made a motion to dismiss on the ground that
the State failed to establish a prima facie case of DUI. the dis-
trict court overruled the motion, and Martin rested. the court
found Martin guilty of the offenses charged beyond a reason-
able doubt.
the court sentenced Martin to serve a 3-year term of inten-
sive supervision probation, including a $1,000 fine, a 60-day
jail sentence, and an 8-year license revocation.
ASSIGNMENt oF ERRoR
Martin assigns that the trial court erred in finding that the
State presented sufficient evidence to sustain a conviction
for DUI.
StANDARD oF REVIEW
[1,2] A conviction in a bench trial of a criminal case is sus-
tained if the properly admitted evidence, viewed and construed
most favorably to the State, is sufficient to support that convic-
tion. State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009).
In making this determination, an appellate court does not
resolve conflicts in evidence, pass on credibility of witnesses,
evaluate explanations, or reweigh evidence presented, which
are within a fact finder’s province for disposition. Id.
ANALYSIS
[3] Martin alleges that the State failed to present sufficient
evidence to sustain a conviction for DUI. When reviewing a
criminal conviction for sufficiency of the evidence to sustain
the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. State v. Thompson, supra. the elements of DUI
which the State must prove beyond a reasonable doubt are
340 	18 NEBRASkA AppELLAtE REpoRtS

(1) that Martin was operating or in actual physical control
of a motor vehicle and (2) that he did so while under the
influence of alcoholic liquor. See Neb. Rev. Stat. § 60-6,196
(Reissue 2004).
Martin argues that the State failed to prove either element
of DUI. In regard to the first element, Martin contends that
although he admitted to driving the vehicle, his admission in
and of itself is insufficient to prove he was operating or in
actual physical control of a motor vehicle, and that there was
no evidence to corroborate his admission. Martin also argues
that even if we conclude that the first element is met, there is
insufficient evidence to establish the second element of DUI,
that Martin operated the vehicle while under the influence
of alcohol.
Assuming without deciding that the evidence was sufficient
to prove that Martin operated the vehicle, we conclude that
the evidence is insufficient to show that Martin was under
the influence of alcohol when he did so. the evidence shows
that Martin was intoxicated at the time Schmidt made con-
tact with him around 6 a.m. and that Martin told Schmidt he
had operated the vehicle and had an accident. However, there
is no evidence of when Martin last operated the vehicle or
when the accident occurred. therefore, there is no evidence of
Martin’s impairment level, if any, at the time he was operating
the vehicle.
Schmidt was dispatched to Martin’s location based on a
report of “suspicious parties” in the area. there was no mention
of anyone driving a vehicle or of an accident. When Schmidt
arrived at the scene, he observed three men standing near or
around a vehicle, but no one was in the vehicle. Schmidt admit-
ted that he did not know how long the vehicle had been parked
at that location, that he did not know when the accident hap-
pened, and that he never saw Martin drive the vehicle. Further,
there were no witnesses who saw Martin driving the vehicle or
saw the accident.
the evidence provides no indication as to when Martin last
operated his vehicle, and therefore, although Martin was intoxi-
cated when contacted by Schmidt, there is no evidence that he
was under the influence of alcohol at the time that he operated
StAtE v. MARtIN 	341
Cite as 18 Neb. App. 338

the vehicle. As a result, the evidence is insufficient to sustain
Martin’s conviction for DUI.
[4] Where there has been insufficient evidence presented to
convict a defendant in a first trial, the Double Jeopardy Clause
“forbids a second trial for the purpose of affording the pros-
ecution another opportunity to supply evidence which it failed
to muster in the first proceeding.” Burks v. United States, 437
U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Because we
have concluded that the evidence is insufficient to support a
conviction, we conclude that the Double Jeopardy Clause pro-
hibits the State from retrying Martin.
CoNCLUSIoN
We conclude that the State failed to present sufficient evi-
dence to sustain Martin’s conviction for DUI, third offense, and
for refusal to submit to a chemical test. the Double Jeopardy
Clause prohibits the State from retrying him. therefore, the
convictions and the sentence of intensive supervision proba-
tion are reversed, and the cause is remanded with directions
to dismiss.
reversed ANd remANded with
direCtioNs to dismiss.
342 	18 NEBRASkA AppELLAtE REpoRtS